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2006 DIGILAW 64 (KER)

Smt. Mary v. The Regional Director

2006-01-31

A.K.BASHEER, M.RAMACHANDRAN

body2006
Judgment :- Ramachandran, J. Order passed by the Employees Insurance court, Kollam dated 28-9-2004 in Insurance Case No.32 of 2002 is under challenge. Sri.T.V. George appeared for the appellant and Sri.Sandeep Raja represented the respondents. We note that the application had not received as much attention as it required, and the issue involved has to be subjected to a fresh consideration on all aspects. A remand of the matter therefore becomes essential. We may briefly note the facts of the case, as guidelines require to be issued for a proper adjudication of the disputed question. 2. Sri. Maria Das, husband of Smt. Mary the appellant was an employee covered by the Employees Insurance Scheme. The couple had four children, all of them girls. Sri Maria Das had met with an accident on 3-1-1984 which had led to his premature death on the date following. Although a road accident, the E.S.I. Corporation had recognized it as an employment injury and had sanctioned dependants’ benefits to the widow and her four children by order dated 6-8-1984. Later, when information had reached the E.S.I. Corporation, that there was a remarriage of the appellant on 8-6-1987, the dependants’ benefits to her had been discontinued. Nevertheless, as provided by the Act, benefits continued to be extended to the daughters till they attained the age of 18, the last of whom reached the said age on 26-10-2001. 3. The Insurance Case No.32 of 2002 however came to be filed at the instance of Smt.Mary, wherein she had urged a contention that the stoppage of dependants’ benefits to her was on a mistaken notion, since at no time there was a remarriage which could have interfered with her rights to continue to get dependants’ benefits. According to her, a formal application had been made to the Corporation on 3-2-1999 requiring them to review the decision, but since no response was forthcoming, the application under Section 75 of the Employees’ State Insurance Act (hereinafter referred to as E.S.I.Act’) had been filed. She submits that consequent to the death of her husband, she had preferred a claim for compensation before the Motor Accident Claims Tribunal, and there was likelihood of a sizeable compensation being received. The details of such proceedings are not divulged here. She averred that her in-laws had schemed so as to get a portion of such compensation. She submits that consequent to the death of her husband, she had preferred a claim for compensation before the Motor Accident Claims Tribunal, and there was likelihood of a sizeable compensation being received. The details of such proceedings are not divulged here. She averred that her in-laws had schemed so as to get a portion of such compensation. With this view, she had been cajoled to enter into a property settlement, and the agreement as above had been registered on 8-6-1987. However, later she noticed that this was not a property settlement, but an agreement for marriage with the brother of late Sri. Maria Das, Sri. Yesudas. They had never lived together as husband and wife and she was never dependant of Sri. Yesudas. Coming to know of the fraud played, she had executed another document on 13-10-1987 cancelling the earlier agreement. Reference is also made to still another document dated 27-2-1990 which was a registered agreement between herself and Sri. Yesudas canceling the marriage agreement of 8-6-1987. She had been misled by the relatives of her deceased husband and as a consequence, she stood to lose a life long benefit which otherwise might have been admissible as dependants’ benefits. It was a case where Corporation was obliged to review their order and re-start payment of dependants’ benefits from the date on which it was discontinued. Relief in the said lines had been prayed for. 4. In the counter statement filed, the respondent had contended that coming to know of the marriage, due enquiries had been made with the Office of the Registrar and the relevant documents had been taken into possession. On the authority of Section 55-A of the E.S.I.Act, as it was a case where because of her remarriage, she was to forfeit the benefits which were sanctioned to her, there was nothing irregular about it. It is pointed out that there was no cancellation agreement, and even if that be the case, it had no legal effect. As per the rules, dependants’ benefits could have been extended only to the dependants and when once such status had been lost, there was no legal right to claim any benefits through the forum of employees Insurance Court. the claim was also hit by limitation prescribed under Section 77 of the E.S.I. Act. As per the rules, dependants’ benefits could have been extended only to the dependants and when once such status had been lost, there was no legal right to claim any benefits through the forum of employees Insurance Court. the claim was also hit by limitation prescribed under Section 77 of the E.S.I. Act. The cause of action for the appellant had arisen when the dependants’ benefit was stopped from 30-8-1988 and therefore, after a period of 13 years, a claim could not have resurrected. The petition ought to have been filed within three years from the date of cause of action. 5. The Insurance Court upheld the claims of the appellant to the extent that she was entitled to get the benefit of dependants’ benefits since the agreement for marriage had been cancelled. The court reasoned that there was no evidence for a marriage having taken place, either by observing customary rites or under the Special Marriages Act. Therefore, the revocation of the agreement also had legal effect. Standing on this premises, it was found that the appellant is entitled to the benefits from 8-6-1987. However, what was preferred by the right hand was taken away by the left hand as according to the curt, the application was time barred and passage of years operated against her rights. 6. Sri. George submits that after finding that she is eligible to get the dependants’ benefits, the Tribunal erred in rejecting the claims on the issue of limitation. He submits that under Section 77 of the E.S.I.Act, the court had discretion to condone limitation beyond a period of three years. Absolute bar was there only as against the Corporation, who were disabled from putting up claims beyond a period of five years. The right of dependants’ benefit is a continuing claim and even though by oversight or a mis-conception, it is stopped for any length of period, the basic rights being always there, limitation could not have been applied as a principle to nullify the vested rights. It would have revived at any point of time, and even if arrears might not be admissible for any reasons, as the cause of action was a continuing one, the issue of limitation should not have found or applied as a bar against her claims. 7. It would have revived at any point of time, and even if arrears might not be admissible for any reasons, as the cause of action was a continuing one, the issue of limitation should not have found or applied as a bar against her claims. 7. We find that the recitals of the agreement of marriage, dated 8-6-1987 refers to a marriage having already been solemnized. It is possible to gather as to whether this indeed had happened. If, as a matter of fact, there is a remarriage, the legal position is that she may not be entitled to claim the dependants’ benefits thereafter. The appellant had a duty to take the court into confidence as to whether a marriage had been solemnised either under the custom practiced by them or under the Special Marriages Act. The Corporation also could have made sufficient enquiries to get a definite picture, and should not have been satisfied with a perfunctory enquiry. We notice from Form 27-A traceable to Regulation 107-A that a dependant is obliged to file a declaration in the prescribed form once in six months, so as to claim the benefits. It is required to be attested by an authority, and a person could be taken to task, if false declaration is given. It is not clear as to any such modalities have been insisted on. It is in these region that further enquiries require to be made. 8. Of curse, we have to see that the Corporation has not filed an appeal against the order and the finding that Smt. Mary was entitled to get the dependants’ benefits with effect from 8-6-1987 would have been a finding precluding their contentions in respect of the issue. But, as the matter is being remitted back, and since we find that the necessary materials have not been supplied to the court, taking this as a circumstances envisaged by Order 41 Rule 22 of Code of Civil Procedure, we vacate the finding of the Tribunal in this regard namely that the applicant is entitled to the dependants’ benefits with effect from 8-6-1987. We also set aside the finding that the application is time barred on the principles urged by Mr. George. We are of the opinion that the matter requires a fresh look, as to whether there was solemnization of remarriage at any time. We also set aside the finding that the application is time barred on the principles urged by Mr. George. We are of the opinion that the matter requires a fresh look, as to whether there was solemnization of remarriage at any time. The parties are to make available further details for the purpose of such adjudication. 9. The conduct of the appellant of keeping silence for over a period of 13 years, of course, might have been sufficient for drawing a presumption against her, but it is possible to be rebutted. We do not want to foreclose the rights of a widow if as a matter of fact, she had been subjected to harassment or was misled by her own relatives. It was on the letter of the mother-in-law that the benefit was discontinued. She might have had an axe to grind, one does not know. We also notice that there is a submission made which stands uncontroverted viz., that Sri. Yesudas inspite of the registered agreement, had married one Smt. Kathreena, on 30-12-1990. If the earlier marriage was there subsisting, normally this would not have been possible at all. 10. We do not think that these aspects have been looked by the Corporation, and placed before the court. A dispassionate approach has to be made by them before apprising the Tribunal of their stand. The case is remitted in its entirety and it will be permissible for the parties to bring in whatever additional materials that might be relevant for a full adjudication of the issue. In the event of declaration that the appellant is entitled to the dependant’s benefits, of course, the Corporation should not be made liable for arrears of claims up to the date of filing of the application at least, since it was entirely due to the handiwork of the appellant that she came to face a predicament and the Corporation was not answerable for the confusion. The Insurance Appeal is disposed of as above. The parties have to suffer their costs.